Sinigaglio v. Federal National Mortgage Association
Filing
51
ORDER granting in part and denying in part 27 Motion to Compel(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 4/17/2018. (BJP)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Joseph Sinigaglio,
Case No. 0:17-cv-3096-SRN-KMM
Plaintiff,
v.
ORDER
Federal National Mortgage Association,
Defendant.
This matter is before the Court on Defendant Federal National Mortgage
Association’s (“Fannie Mae”) Motion to Compel Supplemental Initial Disclosures and
Responses to Defendant’s Discovery Requests, and to Deem Facts Admitted. [ECF
No. 27.] Fannie Mae asks the Court to enter an Order that: (1) compels Mr. Singiaglio
to supplement his initial disclosures to include the information required by Federal
Rule of Civil Procedure 26(a)(1)(A); (2) compels him to provide complete responses
to Fannie Mae’s Interrogatories and Requests for Production; (3) deems statements in
Fannie Mae’s Requests for Admission admitted; and (4) awards Fannie Mae its
reasonable expenses, including attorney’s fees in bringing the motion to compel. [Id.]
Mr. Sinigaglio filed written responses to the motion to compel on March 23 and
March 27, 2018. [ECF Nos. 39 & 40.]
On April 9, 2018, the Court held a hearing on the motion. The Court discussed
the discovery and disclosure issues with counsel for both parties. Consistent with the
foregoing discussion and the narrowing and clarification of issues that took place
during the April 9, 2018 hearing, IT IS HEREBY ORDERED THAT Fannie
Mae’s Motion to Compel [ECF No. 27] is GRANTED IN PART and DENIED
IN PART as described more fully herein.
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1.
Interrogatories and Requests for Production
The greatest focus of the discussion at the hearing was on Mr. Sinigaglio’s
obligations to respond fully to Fannie Mae’s interrogatories and requests for
production of documents. Fannie Mae’s motion to compel raises several issues with
Mr. Sinigaglio’s interrogatory responses and production of documents. The Court
addresses the key issues below.
Damages discovery
In part, Fannie Mae asserts that Mr. Sinigaglio’s responses to discovery
provided insufficient information to substantiate his damages claims. Early on,
Mr. Sinigaglio indicated that he seeks damages in excess of $200,000. Over $100,000
of those damages are for medical expenses and over $100,000 are for “non-economic
damages.” Fannie Mae asserts that Mr. Sinigaglio’s documents and interrogatory
responses do not provide a basis for such damages.
The Court discussed the issue of discovery relating to damages with plaintiff’s
counsel at the hearing. Plaintiff’s counsel confirmed that the documents reflecting
medical expenses incurred as a result of the slip-and-fall incident at issue in this case
show a damages range closer to $19,000 or $20,000. Plaintiff’s counsel further
clarified that the documentation of the medical bills he has provided represents the
extent of the compensatory damages for medical expenses his client seeks in this case.
He further indicated that the $100,000 amount identified early in the litigation was a
prediction based on incomplete information, and that Mr. Sinigaglio has lowered his
settlement demand in this case upon learning that the medical expenses were less than
anticipated.
As explained at the hearing, the Court appreciates plaintiff’s counsel’s candor
regarding the scope of damages for medical expenses sought in this case. The Court
also appreciates Mr. Sinigaglio’s willingness to engage in realistic settlement
discussions during the course of the litigation. However, the lowering of the demand
for settlement purposes does not eliminate the need for Mr. Sinigaglio to provide
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complete responses to discovery. To fulfill his obligations in this respect, the Court
finds that Mr. Sinigaglio must supplement his response to Fannie Mae’s Interrogatory
No. 10, which asked Mr. Sinigaglio to “[p]rovide the specific amount and nature of
any damages Plaintiff contends he sustained as a result of the acts and omissions of
Fannie Mae alleged in the Complaint.”1 [Hauser Aff. ¶ 7, Ex. F, Pl.’s Resp. to Def.’s
Interrogs.]
Accordingly, Fannie Mae’s motion to compel is GRANTED IN PART to the
extent it seeks a more complete answer to Interrogatory No. 10. Mr. Sinigaglio must
provide a supplemental answer to this Interrogatory consistent with his counsel’s
representations at the hearing. 2
Before turning to the other written discovery issues raised by Fannie Mae, the
Court is encouraged that the parties have made some efforts to reach a resolution of
this case. It appears that the parties have recently made progress on that front and
those efforts should continue. The District Court has recently ordered the parties to
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At the hearing, Plaintiff’s counsel pointed the Court to supplemental responses
to interrogatories that were provided prior to the hearing to support Mr. Sinigaglio’s
position that he fully complied with his discovery obligations. [ECF No. 31, Hauser
Aff. ¶ 13, Ex. L, Letter from William Walker to Andrea Hauser (Feb. 22, 2018)
(attaching supplemental discovery responses).] The Court finds that Mr. Sinigaglio’s
supplemental responses also failed to comply with his discovery obligations. In
particular, in response to Interrogatory No. 10, Mr. Sinigaglio merely added the
following vague and incomplete information: “Medical Bills, Dr. Becker, Humana
Lien and pain and suffering. You have requested the bills and records.” [Id., Pl.’s
Suppl. Resp. to Def.’s Interrog. No. 10.] This is patently insufficient to fulfill the
obligation to respond to interrogatories under Rule 33.
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The Court notes that Plaintiff’s counsel clarified at the hearing that
Mr. Sinigaglio seeks only non-economic damages for pain and suffering relating to the
incident alleged in the Complaint. It appears that he does not assert that he received
mental health treatment or other services related to the incident, and seeks what are
commonly referred to as “garden variety” non-economic damages. His supplemental
response to Interrogatory No. 10 should clarify that this is the case beyond his
previous oblique reference to “Humana lien and pain and suffering.”
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meet with the undersigned for a settlement conference no later than August 1, 2018.
[Order, ECF No. 50.] That settlement conference will be scheduled by the Court as
soon as possible. However, the Court advises the parties to make every effort to
resolve this litigation on their own without the Court’s assistance. Doing so seems
more possible now than it has been in the past.
Medical providers
The next major issue discussed at the hearing was Mr. Sinigaglio’s compliance
with discovery requests that sought information about his medical providers. For
example, Fannie Mae asked Mr. Sinigaglio to identify doctors, physicians, persons,
hospitals, and clinics where he received treatment during the last ten years. Prior to
the hearing, Mr. Sinigaglio’s responses to written discovery identified only one treating
physician: Dr. Douglas Becker, Minneapolis Orthopedics. [Hauser Aff. ¶ 7, Ex. F,
Pl.’s Resp. to Def.’s Interrog. No. 11.]
Dr. Becker treated Mr. Sinigaglio for the injuries he sustained as a result of the
incident alleged in the Complaint. Plaintiff’s counsel confirmed at the hearing that no
other medical provider has treated Mr. Sinigaglio for the injuries he attributes to that
incident. However, Mr. Sinigaglio did not provide a list of any other medical providers
who may also have treated him in the years leading up to the incident or since it
occurred. The Court finds that Fannie Mae is entitled to obtain some discovery
relating to other medical providers because that information is relevant to Fannie
Mae’s defense (particularly on the issue of damages) and proportional to the needs of
the case. See Fed. R. Civ. P. 26(b)(1). However, the ten year period requested by
Fannie Mae’s Interrogatory No. 11 is too broad, and defense counsel agreed that a
narrower time frame would be acceptable. The incident alleged in the Complaint
occurred on November 25, 2013. The Court finds that medical records from other
providers for the period of 2010 through 2016 will be sufficient to allow Fannie Mae
to prepare its defense. Consistent with these findings and the additional discussion
below, Fannie Mae’s motion to compel is GRANTED IN PART to the extent it
seeks a supplemental answer to Interrogatory No. 11.
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During the hearing, plaintiff’s counsel noted that during Mr. Sinigaglio’s
deposition, defense counsel referenced an exhibit, which was a handwritten list of
medical clinics, hospitals, and doctors. Defense counsel provided a copy of that list to
the Court following the hearing. [Sinigaglio Dep. Ex. 14 (on file with the Court).] At
his deposition, Mr. Sinigaglio acknowledged that he prepared this list of medical
providers. The list includes several clinics and hospitals where Mr. Sinigaglio received
medical care, but he could not always recall the names of the medical provider who
treated him. It also includes the names of several different physicians from whom he
may have received medical care with some additional information concerning the
locations where those providers could be contacted. The list does not clearly provide
dates for when he received treatment.
This list seems to be a good starting point for the parties to meet and confer
about the universe of medical providers who fall within the range of discovery
permitted on this issue by this Order. Within seven days of the date of this Order,
counsel must begin discussions about which of these medical providers may have
discoverable information that falls within the Court’s limitations set above. Based
upon the information available to the parties, Mr. Sinigaglio must make his best
efforts to provide a supplemental interrogatory response and the parties must discuss
the execution of applicable releases so that Fannie Mae can obtain medical
information from those providers. The Court understands that Mr. Sinigaglio may
have difficulty remembering specifics about each and every one of the providers
included on the handwritten list. Where such specific information cannot be recalled,
the parties must discuss whether Mr. Sinigaglio should nevertheless execute a release
for those providers, with due consideration given to the issues bearing on
proportionality. See Fed. R. Civ. P. 26(b)(1).
Plaintiff’s expert witnesses
Another issue arose at the hearing with respect to Fannie Mae’s Interrogatory
No. 6, which asked Mr. Sinigaglio to provide information relating to his expert
witnesses. Specifically, the interrogatory asked for a description of the subjects on
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which each expert witness will testify, the conclusions and opinions of the witness and
the bases therefore, the qualifications of the witness, and any reports or other
documents prepared by the witness. This interrogatory thereby mirrored the
obligations for any expert disclosures under Rule 26(a)(2)(B).
In response to this interrogatory, Mr. Sinigaglio stated as follows: “Plaintiff
shall call all treating doctors, and surgeons. Plaintiff treated with Dr. Becker –
Minneapolis Orthopedics who will testify to treatment.” [Pl.’s Resp. to Def.’s
Interrog. No. 6.] In later supplementation of his interrogatory responses,
Mr. Sinigaglio provided little more, stating: “Dr. Douglas Becker, Minneapolis
Orthopedics is expert. You have now requested records.” [Hauser Aff. ¶ 13, Ex. L,
Pl.’s Suppl. Resp. to Def.’s Interrog. No. 5 & 6.] The Court finds these answers to
Fannie Mae’s request for information about expert witnesses to be insufficient.
Accordingly, Fannie Mae’s motion to compel is GRANTED IN PART to the extent
it seeks more complete information in response to Interrogatory No. 6. For the
reasons explained below, the Court cannot delineate in this Order precisely how
Mr. Sinigaglio must complete that supplementation.
To the extent that Mr. Sinigaglio intended to call his own treating provider,
Dr. Becker, as a retained expert witness to offer opinion testimony in this case, he was
required by the Scheduling Order to make his expert disclosures pursuant to
Rule 26(a)(2)(B) no later than April 1, 2018. [Scheduling Order ¶ 7a, ECF No. 13.] It
does not appear that Mr. Sinigaglio has made such an expert disclosure and nothing in
the record indicates whether Dr. Becker is the type of expert witness who must
prepare a report under that Rule. It may be that he would fall under Rule 26(a)(2)(C),
which applies to experts who are not required to prepare a written report. In any
event, nothing indicates that Mr. Sinigaglio has disclosed any information about the
substance of any expert opinion Dr. Becker is expected to offer on Mr. Sinigaglio’s
behalf. Given the lack of clarity in the record regarding Mr. Sinigaglio’s apparent
identification of Dr. Becker as an expert witness in his response to Interrogatory
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No. 6, within seven days of the date of this Order, counsel for the parties must
meet and confer about this issue.
2.
Requests for Admissions
In response to Fannie Mae’s request that the matters covered by its Requests
for Admissions be deemed admitted, Mr. Sinigaglio objected. [ECF No. 40 at 1-2.]
The Court construes the request in Mr. Sinigaglio’s response that Fannie Mae’s
motion be denied on this issue, as a motion to withdraw admissions pursuant to
Rule 36(b). That motion is granted. Under the circumstances here, permitting
withdrawal “would promote the presentation of the merits of the action” and will not
unfairly prejudice Fannie Mae. During the hearing on the motion, the Court indicated
to defense counsel that it was not inclined to grant Fannie Mae’s motion with respect
to this issue and defense counsel did not articulate a reason why the Court’s ruling
would be an inappropriate exercise of the Court’s discretion. Accordingly, Fannie
Mae’s motion to compel is DENIED IN PART with respect to this issue.
3.
Supplementation of Rule 26(a)(1) Disclosures
Mr. Sinigaglio’s initial disclosures were deficient in several respects. Of
particular importance, they failed to include the information required concerning:
(1) individuals likely to have discoverable information; or (2) a computation of each
category of damages. Mr. Sinigaglio provided the most cursory information about
those believed to have discoverable information and simply stated that his damages
were “in excess of $100,000.00 for medical and in excess of $100,000 for noneconomic damages.” [Hauser Aff. ¶ 3, Ex. B, Pl.’s Rule 26(a)(1) Disclosures.]
Mr. Sinigaglio’s supplemental disclosures failed to resolve these problems. [Hauser
Aff. ¶ 5, Ex. D, Pl.’s Suppl. Rule 26(a)(1) Disclosures.]
The Court finds that Mr. Sinigaglio’s initial and supplemental disclosures are
insufficient. Ordinarily, his failure to provide the information required—i.e., contact
information for individuals likely to have discoverable information; a brief summary
of the discoverable information those individuals likely possess; a computation of
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each category of damages; and copies of documents that he may use to support the
assertion that he incurred such damages—would require timely supplementation.
See Fed. R. Civ. P. 26(e)(1). Here, however, based on the discussion with counsel at
the hearing, it appears that Fannie Mae has learned some of this information through
other means. For example, it appears that Fannie Mae has obtained information
through a subpoena to Dr. Becker about the medical expenses for which
Mr. Sinigaglio claims one category of damages. Fannie Mae also received plaintiff’s
counsel’s confirmation at the hearing that the total damages sought for medical
expenses was limited to between $19,000 and $20,000. Mr. Sinigaglio is required by
this Order to supplement his interrogatory responses to reflect that information. It
also appears that Fannie Mae has learned some additional information about the
individuals who Mr. Sinigaglio identified in his initial disclosures.
Accordingly, the Court finds that the ordinary supplementation of
Mr. Sinigaglio’s initial disclosures required by the rules may be unnecessary given that
Fannie Mae may have otherwise learned such information during the discovery
process or in writing. See Fed. R. Civ. P. 26(e)(1) (requiring timely supplementation of
Rule 26(a) disclosures if “additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing”). Within
seven days of the date of this Order, counsel for the parties are required to meet
and confer to discuss whether supplementation of Mr. Sinigaglio’s Rule 26(a)(1)
disclosures is required or whether Fannie Mae has obtained the information needed to
move forward through other means.
Fannie Mae’s motion to compel is GRANTED IN PART on this issue
consistent with the foregoing discussion.
4.
Payment of Expenses and Fees
The Court finds, pursuant to Fed. R. Civ. P. 37(a)(5)(A)(iii), that the
circumstances of this case make an award of expenses incurred by Fannie Mae in
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making the motion to compel unjust. Fannie Mae’s motion to compel is therefore
DENIED IN PART to the extent it seeks an award of fees and costs.
s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge
Date: April 17, 2018
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